How the Supreme Court shapes the Constitution

I was inspired by Ken Barton’s comments about the U.S. Constitution in the May 28 Standard-Times. Indeed, as I understand his argument, whenever a vacancy occurs on the U.S. Supreme Court, the president’s nominee should face close scrutiny in the Senate before confirmation to the bench. True enough.

Barton suggests also that the only way the Constitution can evolve is via amendment as specified in Article V. Certainly, that is the way much of the Constitution’s evolution has taken place.

However, complex questions rarely render simple answers.

First, the Constitution evolves via judicial review (the constitutional characteristic that animates, in our time “judicial activism” and “judicial restraint”) as well as amendment. And both conservative and liberal justices engage in the practice.

A justice labeling himself or herself a “strict constructionist,” for instance, means whatever interpretations of the Constitution that justice makes during judicial review will be founded on that justice’s reading of the Constitution. Unable to consult the Founders, a justice must interpret their intent.

Further, the Founders realized that the United States would not remain in the 18th century. We know this perhaps because of the provision to amend the Constitution. Thus, they recognized that historical circumstances — the felt necessities of future generations — might create a need for the Constitution to change.

Yes, they provided for amendment. But they did not specifically restrict judicial interpretation of the Constitution.

So interpretation under the influence of changed social, political, economic and cultural circumstances was tacitly embraced by the Founders. Whether consciously or not, they left it up to the Supreme Court to decide how a historical moment affects the meaning of the Constitution.

A case in point is Marbury v. Madision. The U.S. Constitution contains no language providing for judicial review of laws written by Congress. But in 1803, Chief Justice John Marshall, faced with circumstances probably inconceivable to the Constitution’s authors only a few years before, found such a power in Article III, Section 2, which grants to the Supreme Court review of “all cases, in Law and Equity, arising under this Constitution.”

Marshall said: “It is emphatically the province and duty of the judicial department to say what the law is.” Indeed, he said it has to be the Supreme Court that decides the constitutionality of laws passed by Congress. Without such power to review, the Constitution would be a surreal attempt to limit the power of those who, without the court, would have illimitable power.

A second example of judicial interpretation resulting from historical circumstances came in Worcester v. Georgia when, once again, Marshall found that the Cherokee people in Georgia were politically a nation, one that had made treaties with the United States.

As a result, he wrote that the Cherokee Nation was “a distinct community occupying its own territory ... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees.”

Here, Marshall directly opposed the will of President Andrew Jackson, who wished to remove the Cherokees to Oklahoma and make more land available for white settlement.

Because it was a federal court deciding the constitutionality of state law, this was a controversial decision. It required deft interpretation and a complete understanding of the historical moment, perhaps because it flew in the face of rising states’ rights activism within the United States.

Marshall favored a strong central government. But his decision here also confirmed the Constitution’s desire for freedom from tyrannical power.

A third example of important judicial interpretation came in Plessy v. Ferguson in 1896. In that decision, the Supreme Court decided that segregation on trains was legal as long as train cars for black people and those for white people were substantively the same. The court decided the 14th Amendment did not apply.

Changing that interpretation took more than half a century and required Brown v. Topeka Board of Education in 1954. In perhaps the most interpretive of all decisions, a unanimous court found that separate-but-equal in education was “inherently unequal” because it denied black people 14th Amendment rights to equal protection and was, thus, repugnant to the Constitution.

In all of these cases, Supreme Court justices weighed the evidence presented in court, applied the Constitution as they understood it in their historical moments and came to decisions. In short, they interpreted the Constitution, and the Constitution evolved as a result.

The Constitution works so well in part because of judicial interpretation. Its success is not because it is a static document created by men in the late 18th century who believed their vision flawless. It is because the Founders set up a system where the Constitution came to depend on the Supreme Court to balance the tyrannical tendencies of power.

And justices can do that only when they are free to apply the felt necessities of their moment — as they have throughout the Constitution’s history — to the spirit and letter of a Constitution written in a bygone age.

Dr. David P. Dewar is assistant professor of American history at Angelo State University.